UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4533
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TORIBIO SANDOVAL RIOS,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:09-cr-00003-JAB-1)
Submitted: November 22, 2010 Decided: December 27, 2010
Before GREGORY, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Donald Cowan, Jr., Heather Howell Wright, ELLIS & WINTERS,
LLP, Greensboro, North Carolina, for Appellant. John W. Stone,
Jr., Acting United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Toribio Sandoval Rios pleaded guilty, pursuant to a
written plea agreement, to one count of using a communication
device to facilitate conspiracy to distribute cocaine, in
violation of 21 U.S.C. § 843(b) (2006). Under the plea
agreement, Rios agreed to waive indictment, be charged by an
information, and to plead guilty to the information. In return,
the Government agreed to dismiss the superseding indictment,
which had charged Rios with conspiracy to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C. § 846
(2006). The agreement also contained an appellate waiver,
providing that Rios agreed to waive appeal on any ground except
ineffective assistance of counsel, prosecutorial misconduct, a
sentence in excess of the statutory maximum, or a sentence based
on an unconstitutional factor.
The district court sentenced Rios to forty-six months’
imprisonment, at the bottom of Rios’s U.S. Sentencing Guidelines
Manual (“USSG”) (2008) range. Rios appealed, and his counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), concluding that there are no meritorious grounds for
appeal, but asking us to review whether the district court erred
in failing to question Rios specifically about the appellate
waiver in his plea agreement. Rios also filed a supplemental
pro se brief questioning: (1) whether the district court erred
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when it failed to consider a reduction for acceptance of
responsibility; (2) whether Rios was entitled to a reduction for
his mitigating role in the offense; and (3) whether Rios
qualified for a reduction pursuant to the safety valve
provision. We ordered supplemental briefing to address whether
the district court erred in failing to grant Rios a two-level
reduction pursuant to USSG § 2D1.1(b)(11). Finding no
reversible error, we affirm.
We first note that the Government has not filed a
motion to dismiss or otherwise sought to enforce the appellate
waiver contained in Rios’s plea agreement. This court does not
enforce appellate waivers sua sponte. See United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005). Accordingly, it is
not necessary for us to address whether the district court
should have questioned Rios specifically about the appellate
waiver.
We also need not address Rios’s contention that the
district court erred when it failed to consider a reduction for
acceptance of responsibility, as the record reflects that the
district court granted such a reduction.
Rios argues that the district court should have
considered a mitigating role reduction. Under USSG § 3B1.2, a
defendant can receive a two- or four-level reduction if he was a
minor or minimal participant in any criminal activity. However,
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this reduction is unavailable where “a defendant has received a
lower offense level by virtue of being convicted of an offense
significantly less serious than warranted by his actual criminal
conduct.” USSG § 3B1.2 cmt. n.3(B). Here, Rios’s actual
criminal conduct included participating as a cocaine distributor
and courier in a conspiracy responsible for the distribution of
more than five kilograms of cocaine, an offense that would have
established a base offense level of thirty-two, see USSG
§ 2D1.1(c)(4), rather than the base offense level of twenty-six
that he did receive. Because Rios pled guilty to a lesser
offense and was held accountable for only the amount of cocaine
actually discussed during the charged communication, a
mitigating role reduction was unavailable.
Next, we consider whether the district erred when it
failed to grant Rios a two-level reduction pursuant to USSG
§ 2D1.1(b)(11). We review legal questions concerning the
application of the Guidelines de novo and factual questions for
clear error. United States v. Manigan, 592 F.3d 621, 626
(4th Cir. 2010). Rios failed to argue for a safety valve
adjustment before the district court. When a new claim is
pursued for the first time on direct appeal, we review for plain
error. United States v. Lighty, 616 F.3d 321, 365
(4th Cir. 2010); Fed. R. Crim. P. 52(b). This requires Rios to
establish: “(1) error, (2) that is plain, and (3) that affects
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his substantial rights.” Lighty, 616 F.3d at 365 (citing United
States v. Olano, 507 U.S. 725, 731-32 (1993)).
The Government argues that the safety valve provision
is inapplicable because Rios has failed to meet the final
requirement enumerated in USSG § 5C1.2(a). Section 5C1.2(a)
predicates a two-level reduction on meeting five requirements,
the final one being that
not later than the time of the sentencing hearing, the
defendant has truthfully provided to the Government
all information and evidence the defendant has
concerning the offense or offenses that were part of
the same course of conduct or of a common scheme or
plan, but the fact that the defendant has no relevant
or useful other information to provide or that the
Government is already aware of the information shall
not preclude a determination by the court that the
defendant has complied with this requirement.
USSG § 5C1.2(a)(5). Rios states that it is not clear whether
the information he provided to secure the acceptance of
responsibility reduction would satisfy § 5C1.2(a)(5), but he
argues that the trial court erred in not considering whether
Rios was eligible for the adjustment. We disagree.
We have held that “the burden rests on the defendant
to prove that the prerequisites for application of the safety
valve provision, including truthful disclosure, have been met.”
United States v. Beltran-Ortiz, 91 F.3d 665, 669 (4th Cir.
1996). To meet this burden, Rios must demonstrate “some level
of affirmative conduct . . . that exceeds merely demonstrating a
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willingness to cooperate and answer questions.” United States
v. Ivester, 75 F.3d 182, 185 (4th Cir. 1996). “[A] defendant
does not meet the requirements of the ‘safety valve’ provision
merely by meeting with a probation officer during the
presentence investigation.” United States v. Wood, 378 F.3d
342, 351 (4th Cir. 2004). Because Rios bears the burden of
establishing the applicability of the safety valve provision,
and because the only evidence that he is entitled to an offense-
level adjustment under that provision comes from the presentence
report, the district court did not err in failing to consider,
sua sponte, whether the safety valve provision applied to Rios.
In accordance with Anders, we have thoroughly reviewed
the entire record in this case and have found no meritorious
issues for appeal. We therefore affirm Rios’s conviction and
sentence. This court requires that counsel inform Rios, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Rios requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Rios.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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